T S SINGH DEO Vs. RAMANUJ DUBEY

JUDGEMENT

(1.) This writ petition under Article 227 of the Constitution of India has been preferred by the plaintiff/landlord challenging the Executing Court's order dated 28.9.2004 whereby the Executing Court i.e., the Fifth Civil Judge, Class-II, Ambikapur has allowed judgment debtor's application u/s 3 read with Article 135 of the Limitation Act, 1963 (henceforth the "Act") and has dismissed the execution application on the ground that the Execution Application having been preferred after 3 years from the date of decree is barred by limitation as provided under Article 135 of the Act and as such it deserves to be dismissed.

(2.) The petitioner/plaintiff preferred a suit for permanent injunction against the respondents/defendants seeking issuance of a decree to restrain them from damaging/demolishing the tenanted premises or to repair the same by themselves or through any relative, servants or agents and also for restraining them to create sub-tenancy or to allow Defendant No.2 to enter into the tenanted premises. This prayer was made on the allegation that Defendant No.1 Ramanuj Dubey is the tenant at a monthly rent of Rs.250/-. However, he is undertaking major reconstruction by demolishing the premises and is trying to handover possession to the third parties and is also not paying rent to the plaintiff. It was specifically mentioned in Para 4 of the plaint that a separate suit for eviction of Defendant No.1 is filed, however to avoid misjoinder of two different reliefs and to avoid complication, the present suit is filed. The defendant No.1 has, in fact, allowed Defendant No.2 to occupy the premises and the said Defendant No.2 has installed sign board of his own-shop and is causing demolition/major repairs in the premises. In their written statements, the defendants stated that defendant No.1 is regularly paying the rent and is in occupation of the premises. The tenanted shop being in dilapidated condition, some repairs are undertaken as Defendant No.1 suffered theft in his shop because of weak windows and doors. It was stated that one Atul Dubey member of the joint family of Defendant No.1 is opening his office in the tenanted premises and the premises has never been handed over to Defendant No.2 and in fact said Defendant No.2 is not at all concerned with the suit shop.

(3.) During the pendency of the suit, an application for compromise under Order 23 Rule 3 CPC was filed in which Para 1.b relevant for the present dispute was couched in the following words: